CEDH · PRESS;GENERAL;ENG — 12 juillet 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   399 12.7.2005   Press release issued by the Registrar   CHAMBER JUDGMENT OKYAY AND OTHERS v. TURKEY     The European Court of Human Rights has today notified in writing a judgment [1] in the case of Okyay and Others v. Turkey (application no. 36220/97).   The Court held unanimously that there had been a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights.   Under Article 41 (just satisfaction) of the Convention, the Court awarded each applicant 1,000   euros   (EUR) for non-pecuniary damage. (The judgment is available only in English.)   1.     Principal facts   The applicants are ten Turkish nationals: Ahmet Okyay, Derya   Durmaz, Rıfat Bozkurt, Noyan Özkan, Uğur   Kalelioğlu, Banu Karabulut, Senih Özay, Talat Oğuz, Tamay Arslançeri and İbrahim Arzuk .   They are all lawyers who live and practice in Izmir (Turkey), a city approximately 250 kilometres from the site of the Yatağan, Yeniköy and Gökova (Kemerköy) thermal power stations, which have been polluting the local environment for many years and damaging the region’s biological diversity. The three stations are operated by the Ministry of Energy and Natural Resources and the public utility company Türkiye Elektrik Kurumu , (“TEAŞ”) in Muğla, south-west Turkey.   On three separate occasions in 1993 and 1994, the applicants called on the Ministries of Health, of the Environment and of Energy and Natural Resources, TEAŞ and the Muğla Provincial Governor to take action to close the power stations, as they claimed that they had failed to obtain the necessary licences and that they constituted a danger to public health and the environment. They received no reply, which, under Turkish administrative law, amounted to a refusal.   The applicants subsequently brought three separate actions before Aydın Administrative Court requesting that the decision refusing to halt the power stations’ operation be set aside.   They also asked the court to order the suspension of the activities of the power stations on the ground that they were causing irreparable harm to nature and to public health.   The court commissioned an expert report which found that the stations emitted considerable amounts of nitrogen dioxide and sulphur dioxide and constituted a danger across a zone measuring 25-30 kilometres in diameter.   It recommended that the Gökova power station be shut down immediately, that a part of both the Yeniköy and Yatağan power stations be closed and that desulphurisation units be installed in both of them.   On 20 June 1996 the court found that TEAŞ had been operating the power stations since 1994 under the guise of “test operations”, without having obtained the necessary permits for construction, gas emissions and the discharge of waste water.   On the basis of the experts’ findings, the court noted that the stations had already caused pollution that was harmful to human health and the environment and that their continued operation could do irreparable damage to members of the public.   Consequently, it ruled that the defendant authorities’ refusal to close the power stations had been unlawful and issued an injunction for the suspension of the power stations’ operation.   Aydın Regional Administrative Court dismissed an appeal against the injunction on 29 August 1996 and, on 30 December 1996, Aydın Administrative Court annulled the defendant authorities’ decision to refuse to close the three power stations.   The defendant authorities appealed unsuccessfully to the Supreme Administrative Court which upheld the previous three judgments of Aydın Administrative Court in its decisions of 3 and 6 June 1998.   The administrative authorities were obliged to comply with the courts’ decisions and to enforce them within 30 days of being notified of the judgments.   On 3 September 1996 the Council of Ministers, composed of the Prime Minister and other cabinet ministers, decided that the three thermal-power stations should continue to operate, despite the administrative courts’ judgments. It was noted that the power stations were responsible for seven per cent of the country’s total electricity production and that their contribution to the economy was estimated at around five hundred billion Turkish liras. The Ministry of Energy and Natural Resources further argued that 4,079 persons would lose their jobs and the region’s tourist sector would be adversely affected if the power stations ceased to operate.   Various chief public prosecutors issued decisions not to prosecute the Prime Minister, other ministers or the directors of the thermal power stations.   Farmers living in the vicinity of the Yatağan thermal-power station brought proceedings before Yatağan Magistrates’ Court, alleging that the quality and quantity of their olive and tobacco production had been adversely affected by the poisonous gas and ash emitted by the power station and that they had suffered pecuniary damage. The court awarded them compensation. Relying on expert reports, the court found that the hazardous gas emitted by the power station had caused considerable damage to cultivation in the region, in that, olive trees and tobacco stations suffered from incomplete leaf growth and were unable to produce a sufficient yield. The Court of Cassation upheld the judgments in question. 2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 9 December 1996 and transmitted to the Court on 1 November 1998. By a decision of 17 January 2002 the Court declared the application admissible.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Ireneu Cabral Barreto (Portuguese), Riza Türmen (Turkish), Karel Jungwiert (Czech), Mindia Ugrekhelidze (Georgian), Antonella Mularoni (San Marinese), judges ,   and also Sally Dollé , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained under Article 6 § 1 (right to a fair hearing) of the Convention about the administrative authorities’ failure to enforce the administrative courts’ decisions and orders to close the three power stations in question.   Decision of the Court   Article 6 § 1 The European Court of Human Rights maintained that the applicants were entitled to live in a healthy and balanced environment and, as Turkish citizens, were duty bound under the Turkish Constitution and Section 3 of the Environment Act (Law no. 2872) to protect the environment and prevent environmental pollution. Consequently, they were entitled, under Turkish law, to ask the administrative courts to issue injunctions for the suspension of the power stations’ environmentally hazardous activities, and to set aside the administrative authorities’ decision to continue to operate them.   In addition, the judgments delivered by the administrative courts were favourable to the applicants and any administrative decision to refuse to enforce those judgments or to circumvent them paved the way for compensation.   The Court stated, as it had done in similar cases, that the right of access to a court would be rendered illusory if a State’s legal system allowed a final binding judicial decision or an interlocutory order made pending the outcome of a final decision to remain inoperative to the detriment of one party.   The Court noted that the administrative authorities failed to comply with Aydın Administrative Court’s order of 20 June 1996 to suspend the activities of the power stations.   Furthermore, the decisions of the Supreme Administrative Court upholding the Aydın Administrative Court’s judgments of 30 December 1996 were not enforced within the prescribed time-limits. On the contrary, the Council of Ministers decided on 3 September 1996 that the three thermal power stations should continue to operate despite the administrative courts’ judgments. The decision had no legal basis and was obviously unlawful under domestic law.   It was tantamount to circumventing the judicial decisions.   In the Court’s opinion, such a situation was at odds with the concept of a law-based State, founded on the rule of law and legal certainty. For those reasons the Court considered that the national authorities had failed to comply in practice and within a reasonable time with the judgment of 30   December 1996.     The Court therefore held unanimously that there had been a violation of Article 6 § 1.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.